Politics & Policy

Is the U.S. Giving Mexico Intelligence about Americans?

And will the immigration controversy boil over as a result?

There is no more explosive issue on the political landscape than illegal immigration. Not only has it sharply divided the American people, who want it stopped and reversed, from the political classes, which want to legitimize and, perforce, encourage more of it. It may be singularly responsible for President Bush’s alarmingly low approval ratings.

Those, after all, are not being driven by the Left and the media. They’ve never been fans. The numbers are tanking thanks to flight by the Republican base and Reagan Democrats, who are apoplectic over the administration’s stubborn insouciance in the face of unabashed lawlessness that acutely threatens public safety.

It was inevitable that this would come to a head, and now it may have.

Michelle Malkin, who has been a stalwart on immigration, reports that the United States government has been providing Mexico with intelligence about the lawful activities of American citizens, specifically, the locations and tactics of Minuteman patrols.

The Minutemen have been maligned by pro-illegal-alien lobbyists, swaths of the mainstream media, and–infuriatingly–President Bush himself as a “vigilante” group. In fact, they are a vigilance group.

The project is a lawful association of citizens, multi-ethnic and multi-racial in background, who assiduously monitor the way government performs one of its most basic enforcement missions. That is to say, it does pretty much what CAIR and the ACLU do–except its efforts inure to the benefit of American national security rather than death-row inmates, terrorists, privacy extremists and self-styled dissidents … and thus it is frowned on by our high-minded clerisy.

The Minutemen are doing what the government refuses to do: closely watching the southern border and very publicly reporting to the under-resourced Border Patrol the tide of illegals pouring across. This sometimes shames our reluctant government into enforcing the immigration laws.

Obviously, the feds don’t like to be shamed. The reflexively pro-immigration administration thus despises the project–although, where the rubber meets the road, many Border Patrol agents are quietly thrilled that someone actually thinks their mission is important. There have thus been occasional reports, denied by the Department of Homeland Security (DHS), that border agents have been ordered not to make arrests in response to Minuteman reports.

Now, however, comes a much more serious charge. As Malkin notes, Sara Carter of California’s Inland Valley Daily Bulletin has reported that DHS’s U.S. Customs and Border Protection agency (CPB), which runs the Border Patrol, has been providing the Mexican government with the locations of Minuteman watch groups, as well as other details about Minuteman participation in detentions of illegal aliens.

According to the report, a website maintained by the Mexican secretary of foreign relations explains that U.S. agents, as a matter of routine, notify the Mexican government regarding the locations of civilian border-patrol groups.

As night follows day, this information undermines the effectiveness of the patrols, channeling immigrant smuggling away from them. As Minuteman founder Chris Simcox told Carter, “Now we know why it seemed like Mexican officials knew where we were all the time.” Chagrined, Simcox added, “It’s unbelievable that our own government agency is sending intelligence to another country. They are sending intelligence to a nation where corruption runs rampant, and that could be getting into the hands of criminal cartels.”

Apparently aware that this is a powder keg, DHS is scrambling to justify itself. Initially, a CPB spokesman confirmed the assertions of the Mexican government website. Now, however, a back-peddling DHS is labeling the Daily Bulletin story “inaccurate.”

As Malkin reports today, DHS categorically asserts that the “Border Patrol does not report activity by civilian, non-law enforcement groups to the Government of Mexico.” Rather, “During a detention of a legal or illegal immigrant that produces an allegation of improper treatment, Border Patrol reports the allegation and allows the appropriate consulate to interview the individual in custody.”

The DHS statement is noteworthy in two respects. First, while attempting to discredit the report about providing Mexico with intelligence, it does not clearly deny transmitting information about Minuteman patrols–something the CPB spokesman previously conceded quite matter-of-factly (saying, “It’s not a secret where the Minuteman volunteers are going to be”).

DHS instead says it “reports the allegation” if “improper treatment” is alleged. But we are not told what DHS considers “improper treatment” (e.g., does it consider patrols by the Minutemen–whom the President has labeled as “vigilantes”–to be improper?). Nor are we told how comprehensively DHS “reports” the matter to Mexico (e.g., does it simply notify Mexico that an arrest has been made, or does it convey an expansive summary of the case?).

Second, DHS seems to be saying that it was compelled to disclose whatever information it may have given to Mexico by the 1963 Vienna Convention on Consular Relations, which President Nixon ratified in 1969.

This latter claim bears scrutiny. The consular-notification convention, and in particular its Article 36, comes into play whenever an alien–legal or illegal–is arrested in the United States. It absolutely does not require U.S. authorities to provide any investigative information or other intelligence to foreign governments. Indeed, it does not necessarily require our government to give a foreign government any information whatsoever.

On the contrary, it provides that when a foreign national is detained, he has a right to have his nation’s consulate in the United States informed of the fact of the arrest. If he does not want his nation so advised, the U.S. is under no obligation to provide notice.

If the detainee does assert his consular-notification rights, the U.S. must advise the consulate of the fact of the arrest, pass along any communications the detainee addresses to his consulate, and allow representatives of the consulate to visit with the detainee.

That’s it. If the foreign government is determined to educate itself about the case, it must do so by interviewing the arrestee (just like a defense lawyer) or by open source information (just like a reporter or any person curious enough to check the public record). It has no claim on investigative or intelligence information maintained by the United States government. Of course, our government may decide to share more information with the foreign government; but if it does, that is a function of choice, not a requirement of law.

The reasons for all this should be obvious. Americans themselves are not entitled to intelligence and investigative information from their own government, so foreigners clearly have no legal basis to demand it.

More to the point, though, let’s say the U.S. arrests a terrorist from a rogue nation that happens to be a Vienna signatory. Would anyone seriously contend that our government should provide, say, Iran with background intelligence about the case? Of course not. We want to comply with our obligations to notify foreign governments about the arrests–after all, that is our best assurance that foreign governments will reciprocally comply and notify our government when Americans are arrested in their jurisdictions. We do not, however, owe them more than that.

This situation calls for close attention. The American people should be told exactly what DHS’s component agencies have been telling Mexico. If, as DHS maintains, it is merely honoring U.S. treaty obligations, that is laudable and to be encouraged.

If, however, our government is gratuitously providing a suspect regime with information about the First Amendment-protected activities of American citizens, the immigration issue is headed for a whole new dimension of controversy.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

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